dissenting.
I disagree with the majority’s conclusion that the maintenance of the railroads’ counterclaim does not violate the Federal Employers’ Liability Act (the “FELA”), 45 U.S.C. § 51 et seq. Nor can I agree with the majority’s failure to hold that the counterclaim is contrary to the public policy reflected in the FELA. I therefore dissent.
Contrary to the majority’s assertion, the language of the FELA supports the conclusion that Congress intended to prohibit counterclaims, such as the one filed by the railroad here,1 because the filing of such counterclaims will unfairly coerce or intimidate the injured employee from filing and pursuing his FELA action. Specifically, section 5 of the FELA provides in part that: “Any contract, rule, regulation, or device whatsoever, the purpose or intent of-which shall be to enable any common carrier to exempt itself from any liability created by this chapter, shall to that extent be void____” 45 U.S.C. § 55. Section 10 of the FELA further provides in pertinent part that: “Any contract, rule, regulation, or device whatsoever, the purpose, intent or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, ...” 45 U.S.C. § 60. In my view, the majority construes these statutes too narrowly.
The Supreme Court of Washington considered these statutes in Stack v. Chicago, Milwaukee, St. Paul and Pacific Railroad Company, 94 Wash.2d 155, 615 P.2d 457 (1980) (en banc). In Stack, a brakeman injured in a head-on collision of two trains and the widow of an engineer killed in the same collision brought actions against the railroad under the FELA. The railroad counterclaimed against the engineer and filed a third-party claim against the remaining crew members seeking 1.5 million dollars in property damage resulting from the collision. The Supreme Court of Washington held unanimously that the railroad’s counterclaim and third-party claim “constituted ‘devices contrived to deprive plaintiffs of their right to an adequate recovery and operated to chill justifiable FELA claims in violation of 45 U.S.C. 55 and 60.” 94 Wash.2d at 159, 615 P.2d at 459. I agree.'
The single overriding purpose of the FELA is to provide compensation for injured railroad workers. It accomplishes this purpose by imposing liability upon railroads for injuries to their employees resulting from the railroads’ negligence. 45 U.S.C. § 51. As explained by the Supreme Court in Sinkler v. Missouri Pacific Railroad Company, 356 U.S. 326, 78 S.Ct. 758, 2 L.Ed.2d 799 (1958), the FELA
was a response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety. The cost of human *296injury, an inescapable expense of railroading, must be borne by someone, and the FELA seeks to adjust that expense equitably between the worker and the carrier.
Id. at 329, 78 S.Ct. at 762 (citations omitted). The FELA departs from the common law, id., and supplants state laws with a nationwide uniform system of liberal remedial rules. South Buffalo Ry. Co. v. Ahern, 344 U.S. 367, 371, 73 S.Ct. 340, 342, 97 L.Ed. 395 (1953). It provides injured railroad workers with their exclusive remedy against their employers for injuries resulting from their employers’ negligence. New York Central Railroad Company v. Winfield, 244 U.S. 147, 151-52, 37 S.Ct. 546, 548, 61 L.Ed. 1045 (1917). Section 5 of the FELA, 45 U.S.C. § 55, voids releases or “[a]ny ... other device[s] whatsoever” which enable railroads to exempt themselves from liability for their employees’ injuries under the FELA.2 Stack, 94 Wash.2d at 161, 615 P.2d at 461, (quoting Kozar v. Chesapeake & Ohio Ry., 320 F.Supp. 335, 383-85 (W.D.Mich.1970), vacated in part on other grounds, 449 F.2d 1238 (3d Cir.1971)).
In my view, the railroads’ counterclaim is a “device” calculated to intimidate and exert economic pressure upon Cavanaugh, to curtail and chill his rights, and ultimately to exempt the railroads from liability under the FELA. Here, as in Stack, the railroads’ counterclaim violates 45 U.S.C. § 55 “because the ultimate threat of ‘retaliatory’ legal action would have the effect of limiting [the railroads’] liability by discouraging employees from filing FELA actions. Further, it would have the effect of reducing an employee’s FELA recovery by the amount of property damage negligently caused by the employee.” 94 Wash.2d at 160, 615 P.2d at 460. To allow the railroads’ counterclaim to proceed would pervert the letter and spirit of the FELA and would destroy the FELA as a viable remedy for injured railroad workers. The result sought by the railroads, and accepted by the majority, defies common sense and is repugnant to the general goal of the FELA to compensate railroad workers for injuries negligently inflicted by their employers.
In addition, the railroads’ counterclaim contravenes 45 U.S.C. § 60 in that it would prevent employees from voluntarily furnishing information regarding the extent of their negligence. Stack, 94 Wash.2d at 159, 615 P.2d at 460. The FELA “is intended to stimulate [railroads] to greater diligence for the safety of their employees and of the persons and property of their patrons.” Jamison v. Encarnacion, 281 U.S. 635, 640, 50 S.Ct. 440, 442, 74 L.Ed. 1082 (1929). As long as a railroad is permitted to hold the threat of a counterclaim for property damage over the heads of those employees who have the misfortune to be involved in a railroad accident, those witnesses, whether injured or not, may well be reluctant to participate during the initial investigation by the railroad, at hearings held by the National Transportation Safety Board, or at the trial of an FELA action maintained by a fellow employee.
Nor can I agree with the majority that “[i]n the contest of precedents ... the balance tilts sharply in favor of the allowability of the counterclaim herein.” The majority’s reliance on Kentucky & Indiana Terminal Railroad Company v. Martin, 437 S.W.2d 944 (Ky.1969), and Capitola v. Minneapolis, St. P. & S.M.R. Co., 258 Minn. 206, 103 N.W.2d 867 (1960), is misplaced. In Martin, the issue of whether a counterclaim could be maintained in an FELA action was neither argued by the parties nor considered by the court. The dismissal of the counterclaim was upheld on the ground *297that the railroad’s negligence foreclosed its recovery on the counterclaim. Martin, 437 S.W.2d at 951. In Capitola it was “unnecessary to consider whether a counterclaim may be maintained in an F.E.L.A. action.” Capitola, 103 N.W.2d at 870.
The majority also relies on two unreported district court opinions, Consolidated Rail Corp. v. Dobin, Adm’r, No. 82-2539 (E.D.Pa.1981), and Key v. Kentucky & Indiana Terminal R. Co., No. C-78-0313-L(A) (W.D.Ky.1979). In this Circuit, citation of unpublished decisions is disfavored. See 4th Cir. Local Rule 18(d). It is impossible to determine if these unreported opinions represent the judicial mainstream of thought because “for every [trial court] decision cited by counsel there might be a dozen adverse decisions outstanding but undiscovered.” Adams Dairy Company v. National Dairy Products Corp., 293 F.Supp. 1135, 1151 n. 18 (W.D.Mo.1968). Moreover, in Key, without setting forth any reasoning, the district court summarily denied the employee’s motion to dismiss the railroad’s counterclaim or to sever the trial of the counterclaim from the trial of the complaint. Such a cryptic order in a case that was ultimately dismissed as settled can provide no guidance for the present appeal.
Finally, Cook v. St. Louis-San Francisco R. Co., No. Civ. 75-0791-D (W.D.Okl. Aug. 3, 1977), cited by the majority, forcefully illustrates the unjustness of the majority’s decision. In Cook, the plaintiff was a fifty-four year old conductor who earned $18,-000 when he was seriously injured as a result of a freight train collision. The jury returned a verdict of $46,000 on the plaintiff’s FELA complaint and a verdict of $1,197,250.98 on the railroad’s counterclaim. Thus, the plaintiff was left with no compensation for his injuries and a judgment debt of more than 1.1 million dollars. 1 cannot believe that Congress intended such an absurd result.
For the foregoing reasons, I would affirm the judgment of the district court.
. At oral argument before the district court, counsel for the railroads acknowledged that railroads generally do not bring actions against their employees for property damage because they have no reasonable expectation of recovery and because their employees may in fact be judgment proof. In this case, the railroads did not assert their claim for property damage until approximately one year and nine months after the accident when Cavanaugh instituted his FELA action. In fact, counsel for the railroads admitted to the district court that:
In this case, [Cavanaugh] is not going to be judgment proof when he recovers a vast sum of money, which he is attempting to recover from the Railroads.
As a matter of fact, he is going to be a rich man once he recovers, and can establish a right to recovery. And that is why this [counterclaim] has been asserted____
Tr. 78. Thus, it is clear to me that the railroads filed their counterclaim either to coerce Cavanaugh into settling his claim or, if his FELA action proceeded to trial, to strip him of any damages by means of an offset. I cannot agree that Congress intended to sanction such a motive.
. The majority acknowledges that a contract of employment releasing the railroad from liability for personal injuries is void under § 5 but reasons that “a counterclaim by the railroad for its own damages is plainly not an ‘exemption] ... from any liability’ and is thus not a 'device' within the contemplation of Congress.” I cannot agree.
The effect of a release or a counterclaim on an injured railroad employee is the samé. In both cases, he will be denied compensation for his injuries caused by the railroad's negligence and in the final analysis, the railroad will be exempt from liability. It is this intolerable result which Congress intended to prevent by enacting § 5.